Strasbourg, 12 January 2007

CCJE REP(2007)4
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2007 CCJE opinion concerning the Councils for the Judiciary: Reply submitted by the delegation of Lithuania

Part I - General context concerning the judiciary

1. Is there possible interference of the legislative power concerning judges? If yes, please specify.

The principle of separation of powers is clearly stated in the Constitution of Lithuania1. The essence of this principle was widely disclosed in the jurisprudence of the Constitutional Court of the Republic of Lithuania (further – the Constitutional Court).

According to the Constitutional Court, it is possible to distinguish two inseparable aspects of the principle of the independence of judges and courts. This principle, first of all, means the independence of judges and courts when they administer justice. On the other hand, judges and courts are not sufficiently independent if the independence of courts as the system of the institutions of the judiciary is not ensured. According to the principle of separation of powers, all powers are autonomous, independent, and capable of counterbalancing each other. The judiciary, being independent, may not be dependent on the other powers also because of the fact that it is the only power formed on the professional but not political basis. Only being autonomous and independent of the other powers, the judiciary may implement its function, which is administration of justice2.

The influence of the legislative power concerning judges in Lithuania is very limited. In addition to the powers traditionally attributed to the legislature, such as adopting the laws concerning the activities of the judiciary or setting the material conditions for the functioning of the judiciary by adopting the annual budget of the State, the legislative power has some rights related to the appointment or dismissal of judges.

In Lithuania judges of the Supreme Court of general jurisdiction are appointed by the Seimas (parliament). The consent of Seimas is also needed for the appointment of judges of the Court of Appeal of Lithuania. The same procedure also applies for the transfer or removal of the mentioned judges from the office.
The President and judges of the Supreme Court of general jurisdiction, the President and judges of the Court of Appeal who have grossly violated the Constitution or breached their oath, or if it transpires that a crime has been committed, may be removed from office according to the impeachment proceedings established by the Statute of the Seimas3. There have been no such removals in practice insofar.

The consent of Seimas (and in the period between the sessions of the Seimas – the consent of the President of the State) is needed for the judge to be held criminally liable, arrested or have his freedom restricted otherwise4.

2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify.
§ concerning judicial performance?
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody)

The answer is negative. Although the Seimas has a power to form provisional investigation commissions, the powers of such commissions are strictly limited by the Constitution and laws. The Constitutional Court of Lithuania has ruled that although under the Constitution it is not permitted to establish any exhaustive (final) list of questions, for the investigation of which the Seimas may form provisional investigation commissions (since the Seimas, as the representation of the Nation and the institution of legislation (performing not only the legislative but also various other functions), may pass laws and other legal acts regulating most varied social relations), the powers of Seimas provisional investigation commissions are to be related with the constitutional purpose and functions of the Seimas5.

According to the constitutional principle of separation of powers and other provisions of the Constitution, the Seimas has no powers to form any such provisional investigation commissions, which would be commissioned with investigation of things, in the course of investigation of which the powers of other institutions which execute public power, as well as the powers of other state and municipal institutions provided for in the Constitution and/or laws would be interfered with. The Seimas provisional investigation commission cannot take over the constitutional powers of courts or otherwise interfere with the implementation of the constitutional competence of courts, nor violate the independence of the judge and courts in the course of administration of justice, let alone administer justice by itself.6

The Seimas provisional investigation commission does not have any right to demand that a judge, a prosecutor, an official of pre-trial investigation should present to the Seimas provisional investigation commission explanations concerning on-going or completed pre-trial investigation, or a case that has been accepted for consideration, or is being considered in court, or whose consideration in court is over. In the activities of the Seimas provisional investigation commission the provisions of Article 109 of the Constitution that in the Republic of Lithuania justice shall be administered solely by courts and that while administering justice, the judge and courts shall be independent, while considering cases, judges shall obey only the law, the provision of Article 114 of the Constitution that interference by institutions of state power and administration, members of the Seimas and other officials, political parties, political and public organizations, or citizens with the activities of a judge or the court shall be prohibited and incur liability as provided for by law, the provisions of Article 118 of the Constitution that the prosecutor shall organize and be in charge of pre-trial investigation as well as pursue charges on behalf of the state in criminal cases and while discharging his functions, the prosecutor shall be independent and obey only the law, as well as the other provisions of the Constitution that consolidate the independence of judges and courts in the course of administration of justice and the independence of the prosecutor in the course of organization of pre-trial investigation and being in charge of it must be followed7.

3. Is there possible interference of the executive power concerning judges?

The answer to this question requires a short historical overview.

After the restoration of independence of Lithuania in 1990, the executive power (namely – the Ministry of Justice) used to have quite wide powers concerning the judiciary. At the end of 1994, the Seimas approved the Outline of Reform of the Legal System8. This outlined the pace and most important objectives and tasks for reforming the national judicial system with emphasis on its conforming to the standards of Europe. The management of a legal system reform was handed over to the Ministry of Justice, while the latter’s sphere of authority and range of functions have been significantly expanded. The Ministry of Justice became responsible for drawing up the conditions for the functioning of legal institutions (courts, prosecutors, lawyers, notaries), and for supervising and coordinating their activities. A separate Department of Courts was formed at the Ministry of Justice. It was in charge of the following activities: 1) planning of distribution of court institutions, number of judges in courts, 2) enforcement of the courts' administration, 3) provision of material technical support to the courts, 4) auditing and inspecting the economical and financial work of district and regional courts and the Court of Appeal, 5) controlling of administrative work of courts, except the Supreme Court9, 6) auditing of organizational work of all courts following the order established by the Minister of Justice. The Ministry of Justice, the Department of Courts and presidents of courts were supposed to co-ordinate the actions between themselves that were within their jurisdiction.

The mentioned situation has changed in 1999, after the Constitutional Court has rendered a Ruling, recognizing a set of norms of the contemporary Law on Courts unconstitutional10. The Constitutional Court has ruled that „while ensuring the independence of judges and courts, it is of much importance to separate the activity of courts from that of the executive. [...] Under the Constitution, the activity of courts is not and may not be considered an area of administration ascribed to any institution of the executive. Only the powers designated to create conditions for the work of courts may be granted to institutions of the executive”11.

The Constitutional Court has also ruled, that „the material basis of the organizational independence of courts is their financial independence of any decisions of the executive. The financial independence of courts is ensured by such legal regulation when finances for the system of courts and every court are allocated in the state budget approved by the law“12.

By the mentioned Ruling the Constitutional Court recognized unconstitutional inter alia the possibilities for the Minister of Justice to propose appointments and dismissals of judges, financial dependence of the judiciary on the executive (Ministry of Justice) and the rights of the Minister of Justice concerning the disciplinary responsibility of judges.

The Constitutional Court has also noted thatthe all-sufficiency and independence of the judiciary (as implied in Constitutional principles of separation of powers and independence of the judiciary) presupposes its self-governance (autonomy). The self-governance of the judiciary also includes organization of the work of courts and the activities of the professional corps of judges. The organizational independence of courts and their self-government are the main guarantees of actual independence of the judiciary.”13

The Ruling of the Constitutional Court gave the impetus to review and revise relationships between the executive and judiciary as well as to remove inconsistencies of the legislation with the Constitution. Revisionism resulted into drafting a new Law on Courts which came into force on the 1st of May 2002 and is valid (with some amendments) until now.14 Following the explanations of the Constitutional Court, most powers, previously carried out by the Ministry of Justice, were vested with the newly formed Judicial Council,15 which became the main institution of the self-governance of the judiciary. The National Courts Administration - an institution funded from the budget, providing services to the institutions of judicial autonomy was created to replace the former Department of Courts at the Ministry of Justice. The National Courts Administration is an institution independent from the executive power, the director of this institution is appointed by the President of the State on the proposal of the President of the Supreme Court.
Presently the Ministry of Justice has only a very limited powers concerning the judiciary, such as to organise the training of judges, to approve programmes for training of judges, regulations on training tests and schedules, types of training, its scope and financing, other teaching-related documents in collaboration with the Council of Judges16, or to manage the State investment programmes17.

4. If yes, is it possible for the executive power to interfere:
§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)
§ in management of courts? (if yes, please specify which authority from the executive power)

The President of the State is vested with the constitutional powers to appoint judges, promote them and remove them from the office. This applies to the appointment, promotion, transfer and dismissal of all the judges, with the exception of judges of the Supreme Court, who, as mentioned above, are appointed by the Seimas, and judges of the Constitutional Court, who are appointed following the special procedure.

Appointment to the position of the president or vice-president of court under the Lithuanian laws is considered judicial promotion. Thus the same rules as for the promotion of judges are applied.

It has to be noted that for any decision of the President of the State concerning the appointment, promotion, transfer or dismissal of judges the prior advice of the Council of Judges is necessary18. According to the Constitutional Court, the special institution of judges, provided for by the Constitution, not only helps the President of the State to form courts but it also serves as a counter-balance to the President of the State, who is a subject of the executive, in the area of the formation of the corps of judges. The recommendation of this institution gives rise to legal effects: in case there is not a recommendation of this institution, the President of the State may not adopt decisions on appointment, promotion, transfer of judges or those on their dismissal from office.19

None of the authority from the executive power (including the President of the State) has a right to interfere in the disciplinary procedures of judges. The system of disciplinary responsibility of judges in Lithuania is based on the principle of judicial self-governance and performed by the special institutions of judicial self-governance: the Court of Honour of Judges and Judicial Ethics and Discipline Commission.

4. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court?
§ the Ministry of Justice?

The judicial staff is working under the authority of the president of relevant court. According to the Law on Courts of the Republic of Lithuania, the president of the court shall act as the head of the court staff. Upon direction of the president of the court, the vice president, the president of a division or an employee of the court may act as heads of individual structural units of the court20.

5. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court?
§ to distribute the work between judges?
§ to act as a disciplinary authority vis-à-vis judges?
§ to intervene in the career of judges?
§ other? If yes, please specify.

According to the Law on Courts, the president of court shall assign the judges to the divisions of the court, establish the specialisation of the judges for hearing of cases of appropriate categories, ensures that adequate conditions are provided for the judges and the court staff to perform their functions, and takes other measures necessary for ensuring a normal functioning of the court. The president of court has personal responsibility for providing adequate conditions for the judges and the court staff and must ensure that the court building and premises are in good condition, that the court has adequate supply of inventory and other organisational and technical facilities21.

The cases between judges are distributed by the president of court or the president of the relevant court division according rules, adopted by the Council of Judges22 or the President of court (in the Supreme Court and the Supreme Administrative Court).

The president of court organises and supervises administration at the court, controls compliance with the requirements of the Code of Judicial Ethics. The president of court also reviews complaints of persons about the actions of judges unrelated to the administration of justice as well as about the actions of the court staff, reports to the interested parties the results of the review and performs other functions of court administration assigned to him23.

Supervision of administrative activities of courts is performed by the president of the relevant higher court: of district courts - by the president of the relevant regional court, of regional administrative courts - by the President of the Supreme Administrative Court, of regional courts - by the President of the Court of Appeal24.

The president of the court where a judge is employed or the president of any higher court has the right to make a motion for instituting a disciplinary action against a judge25. A reasoned petition for bringing a disciplinary action against the judge must be submitted to the Judicial Ethics and Discipline Commission. The president of court cannot act as a disciplinary authority himself/herself.

The president of court does not have direct competences to evaluate the work of the judges of the court or to intervene in the career of judges, as those are done according to the specific procedures and by special institutions (ad hoc evaluation commission or special permanent Selection Commission). However, the president of court participates in the procedures of periodical evaluation or promotion of judges by giving reasoned conclusions to the mentioned commissions. The president of court may also initiate an extraordinary evaluation of the activities of a judge.26

Part II – General concerning Councils for the Judiciary

6. Is there a Council for the Judiciary in your judicial system?

Yes, there is.

7. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)

“Teiseju taryba” (The Council of Judges).
From May 2002 to May 2006 the name of the Council was “Teismu taryba” (The Judicial Council)

8. What is the legal basis for the Council for the Judiciary:
§ the Constitution?
§ the law?
§ other? If yes, please specify.

The origins of the Council of Judges are of the constitutional nature. Article 112 of the Constitution of the Republic of Lithuania states that a special institution of judges provided for by law shall advise the President of the State on the appointment, promotion, transfer of judges, or their dismissal from office. The Council of Judges was first of all created for fulfilling this constitutional function.

However, presently the competence of the Council of Judges in Lithuania is much wider than solely giving an advice to the President of the State. After the mentioned Ruling of the Constitutional Court of 21 December 1999, the Council of Judges became an executive body of self-governance of courts ensuring independence of courts and judges27. Competence and powers of the Council are defined by the Law on Courts.

9. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)

As it was already mentioned, the need for an institution like the Council of Judges emerged after the adoption of the Constitution of the Republic of Lithuania28. At the beginning, the Council of Judges was merely an advisory institution on the appointment, promotion, transfer of judges, or their dismissal from office. Later, following the jurisprudence of the Constitutional Court of the Republic of Lithuania, the powers of the Council were significantly expanded. The Council became the main body of self-governance of courts.

Short historical overview:

1. Following the constitutional provision, that a special institution of judges provided for by law shall advise the President of the State on the appointment, promotion, transfer of judges, or their dismissal from office, the Law on Courts of the Republic of Lithuania, that came into force from the 1st of January 1995, provided for the establishment of the Council of Judges, composed of 9 judges (President and Division Presidents of the Supreme Court, President of the Court of Appeal and 5 judges elected by the general Meeting of Judges for the term of 5 years), which competence was to advise the President of the Republic on the appointment, promotion, transfer of judges, or their dismissal from office, as provided for by the Constitution.

2. In 1998, the Law on Courts was amended with regard to the composition of the Council of Judges. The composition of the Council of Judges was expanded to 14 members: President and Division Presidents of the Supreme Court as well as President of the Court of Appeal ex officio, 5 judges elected by the general Meeting of Judges, 2 judges appointed by the President of the State, 2 judges appointed by the Minister of Justice, and 1 judge elected by the Lithuanian Association of Judges. The term of office of the members of the Council was prolonged to 6 years. The powers of the Council were also expanded – it was granted the right to elect 3 members of the Judicial Examination Commission, approve the regulations of the Court of Honour of Judges, to investigate, on the basis of the application of the judge concerned, if the principle of judicial independence was not violated by the official, investigating the activities of the judge (court), as well as to give its opinion on the issues of organization of judicial activities, upon the request of the President of the State, the Seimas, the Minister of Justice or the General Meeting of Judges.

3. Following the Ruling of the Constitutional Court of the 21st of December 199929, the new wording of the Law on Courts was drafted and came into force from the 1st of May 2002. It provided for the strong self-governance of the judiciary, transferring most functions, previously carried out by the Ministry of Justice to the newly composed Council, which was recognized as the main executive self-governance institution of the judiciary.

The composition and role of the Council of Judges has significantly changed. Judicial Council30 now consisted of 24 members, 18 of them judges, other 6 – representatives of legislative and executive (one representative delegated by the President of the State, one representative delegated by the Chairperson of the Seimas, Chairperson or Deputy Chairperson of the Committee on Legal Affairs of Seimas, Chairperson or Deputy Chairperson of the Committee on Budget and Finance of Seimas, Minister or Vice minister of Justice, and Minister or Vice minister of Finances). Participation of the members of executive and legislative in the work of Judicial Council was a compromise made seeking to avoid the opinion that Judicial Council is a closed-door institution, especially taking into account the expansion of functions of the Judicial Council.
The President of the Supreme Court of general jurisdiction was the President of the Judicial Council ex officio.

4. In May 2006 the Constitutional Court of Lithuania has ruled, that the provisions of the Law on Courts, to the extent that it is established that not only judges but also other persons compose the Judicial Council, is in conflict with the Article 112 of the Constitution, the constitutional principle of separation of powers and the constitutional principle of a state under the rule of law.

The Constitutional Court has ruled, that „in the area of the formation of the corps of judges, the special institution of judges (which is an important element of self-governance of the judiciary as an independent state power), is a balance to the President of the State, who is a subject of the executive. The all- sufficiency, autonomy, independence of the judiciary and the constitutional principle of separation of powers does not allow to construe the constitutional purpose and functions of the said special institution of judges in such a way so that its role of a balance to the President of the State in the area of the formation of the corps of judges would be denied or ignored. [...] The formula "a special institution of judges shall advise" of Paragraph 5 of Article 112 of the Constitution means that, firstly, the said state institution must be composed for the purpose specified in this paragraph - to advise the President of the State on the appointment, promotion, transfer of judges or their dismissal from office, secondly, this state institution must be composed only of judges [...]otherwise, i.e. if this institution was composed not of judges or not only of judges, the constitutional concept (that during the formation of the corps of judges, the said special institution of judges is the balance to the President of the State - political institution) of the state institution - special institution of judges entrenched in this paragraph - would be disregarded“31.

According to the Constitutional Court, the legislator is free to form other self-governance institutions of the judiciary than the special institution of judges provided for by the Article 112 of the Constitution. The legislator (particularly taking account of the necessity to ensure the trust of society in the judicial power, law, and the legal system of the state) may also establish by law such legal regulation that the said other self-governance institutions of courts would include not only judges but also other persons. In itself, this should not be assessed as denial of self-governance and independence of the judicial power. However, also in such case, judges must form the absolute majority of the members of such self-government institutions of the judiciary, as an independent state power, moreover, the heads (persons holding the chairmanship) of such institutions may also be only judges. If, however, such model of self-governance of the judiciary is chosen by the legislator, that along with the democratically convened meeting of judges (or representatives thereof) provided for by law, there would be only one self-governance institution of judges implementing inter alia the powers established in Paragraph 5 of Article 112 of the Constitution to advise the President of the State on the appointment, promotion, transfer of judges or their dismissal from office, this institution must be composed solely of judges.

The Constitutional Court has also ruled that no official of the judicial power may be treated as the head of the whole judicial power or the representative thereof in the relations with other state powers and that under the Constitution, self-governing judicial power may not be too centralised in general. Thus in self-governance institutions of the judicial power no judge may have more rights than any other judge. Under the Constitution, the legislator may not entrench any such legal regulation that a certain judge could become the head of the special institution of judges established by law and specified in the Article 112 of the Constitution ex officio32.

Following the mentioned Ruling of the Constitutional Court, the Law on Courts was amended33, determining that the Council of Judges34 is composed of 15 members, all of them judges. The President of the Council of Judges is elected by the members of the Council.
The competence of the Council of Judges remained unchanged.

Part III - Composition

10. What is the composition of the Council for the Judiciary:
§ Number of members?
§ Qualification of the members?
§ For the “judges” members, do they need specific qualifications or experiences?
§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions)

Presently the Council of Judges is composed of 15 members, all judges. The President of the Supreme Court, the President of the Supreme Administrative Court and the President of the Court of Appeal are the members of the Council ex officio. Other members of the Council of Judges are elected by the General Meeting of Judges on the principle of representation of various levels of courts.

A judge whose period of service in judicial office is less than five years or in respect of whom measures of disciplinary liability have been applied may not be elected a member of the Council of Judges.

Following the recent Ruling of the Constitutional Court, non-judges can not be the members of the Council of Judges35.

11. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)?
§ What is the appointment system (voting, individual candidates, designation, etc.)?

As ir was mentioned above, the President of the Supreme Court, the President of the Supreme Administrative Court and the President of the Court of Appeal are the members of the Council ex officio.

Elected members of the Council of Judges are elected by the General Meeting of Judges on the principle of representation of various levels of courts - 3 judges from the Supreme Court, 1 from the Supreme Administrative Court, 1 from the Court of Appeal, 4 from regional courts of general jurisdiction, 1 from regional administrative courts and 2 from district courts.
The candidates to the members of the Council are designated and elected by the judges of the relevant courts by secret vote.

12. How is appointed the President and/or Vice-President of the Council?

From the beginning of the functioning of the Council, the President of the Council used to be elected by the members of the Council. This procedure was changed in 2002 by introducing the provision in the Law on Courts, that the President of the Supreme Court of general jurisdiction is the President of the Council ex officio.
After the Ruling of the Constitutional Court of May 2006, explaining that the legislator may not establish such legal regulation that a certain judge could become the head of the special institution of judges established by law and specified in the Article 112 of the Constitution ex officio, the former procedure was re-established. The President of the Council, as well as the Vice-president and the Secretary of the Council are presently elected by the members of the Council by the secret vote (simple majority).

13. What is the term of office for a member of the Council?

The term of office for an elected member of the Council of Judges is four years. A judge may be elected a member of the Council of Judges for not more than two terms36.

The membership of the Council also terminates if a member of the Council is dismissed from judicial office, or if the ex officio member of the Council changes his/her position.

14. May a member be removed from office against his/her will and, if so, under what circumstances?

Only if he/she is dismissed from the judicial office according to the Constitution and laws.
It should be noted that the disciplinary action against the member of the Council can be instituted only with the consent of the Council37.

Part IV - Resources

15. Where does the Council receive its financial resources?

The Council does not have its own financial resources.

16. Does the Council have its own staff?

No, it doesn’t.

17. If not, is the personnel provided by:
§ the Ministry of Justice?
§ the Supreme Court?
§ other institution? Please specify

The National Courts Administration is a budgetary institution assisting the institutions of the autonomy of courts, including the Council of Judges, in exercising their functions. There are about 40 employees working in the National Courts Administration.
According to the Law on Courts, The National Courts Administration shall:
1) prepare the materials for the General Meeting of Judges and the meetings of the Council of Judges, undertake to conduct, subject to their request, studies, analysis, surveys, draw up draft decisions, resolutions and other acts;
2) provide technical services to the institutions of court autonomy;
3) gather information about the enforcement of the decisions and resolutions of the General Meeting of Judges, the Council of Judges and the Judicial Court of Honour and submit it to the Council of Judges or, on its direction, to the General Meeting of Judges;
4) analyse the activities of courts, with the exception of administration of justice, make proposals about the conditions of work in courts;
5) organise and ensure a centralised system of supply to the courts of necessary inventory and services;
6) prepare a consolidated account about the performance of the estimates of expenditure in the budgets of the National Courts Administration, of district courts, regional courts and regional administrative courts;
7) gather, analyse and sum up statistics of the courts and submit it to the Council of Judges, the courts and the Ministry of Justice;
8) administer the list of candidates to the vacancies of judgeships and their personal files;
9) review applications, petitions and proposals falling within the competence of the National Courts Administration and take measures to solve the problems raised in them;
10) discharge other requests of the institutions of court autonomy;
11) perform other functions provided by law.

18. What is the staff number?

Not applicable

19. What are the qualifications of the staff?

Not applicable

20. Must the staff be composed, albeit only in part, by judges?

Not applicable

21. What are the tasks of the staff of the Council:
§ preparing materials for the Council members?
§ providing them with analysis and evaluation of the courts’ practice?
§ other? Please specify.

Not applicable

Part V - Tasks

22. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?

In the area of personnel policy the constitutional function of the Council is to advice the President of the State on the appointment, promotion and dismissal of judges.

The Constitutional Court has ruled, that in such cases, when the President of the State applies to the special institution of judges specified in the Article 112 of the Constitution for advice regarding the appointment, promotion or transfer of a judge, and this special institution of judges advises to appoint the person as a judge, to promote the judge or to transfer him, such advice is not binding on the President of the State. It means that the President of the State might decide not to appoint that person as a judge, not to promote the judge, or not to transfer him (and if a judge of the Supreme Court or the Court of Appeal is appointed, promoted or transferred - might decide not to submit his candidature to the Seimas). Different legal effects of the advice of the special institution of judges appear when it either expressis verbis advises the President of the State not to appoint that person as a judge, not to promote a judge or not to transfer him or it replies to the President of the State that it does not advise him to appoint that person as a judge, promote a judge or transfer him. In such cases, under the Constitution, the President of the State may not (correspondingly) appoint that person as a judge, nor promote, nor transfer a judge (and if a judge of the Supreme Court or the Court of Appeal is appointed, promoted or transferred - he may not submit his candidature to the Seimas)38.

In addition the Council of Judges:
1) advises the President of the State in respect of determining or changing of the number of judges in courts;
2) forms the Judicial Examination Commission and appoints its Chairperson, approves the regulations of the Commission and the programme of the examination;
3) approves the procedure of entering the candidates in the list of judicial vacancies at a district court and the procedure of entering the candidates in the register of persons seeking  promotion in judicial office;
4) approves the Regulations of the Selection of Candidates for Judicial Appointments, the Assessment Criteria for Candidates for Judicial Office, the Regulations of Selection of the Persons Seeking Promotion in Judicial Office and the Assessment Criteria for Persons Seeking Promotion in Judicial Office;
5) appoints 2 members of the Selection Commission39 and the Chairperson of the Commission from among the members.

§ in area of initial and/or continuous training for judges and/or courts’ staff?

According to the Law on Courts, training of judges shall be organised, programmes and methodological materials shall be developed by the Council of Judges and the Ministry of Justice. Programmes for training of judges, tests’ rules, annual syllabuses and schedules, types of training, its scope and financing, other teaching-related documents shall be endorsed by the Minister of Justice subject to the approval of the Council of Judges.40

Training of courts’ staff is organized according to the Law on Public service. The Council of Judges takes no part in it. However, the legal staff of courts (assistants of judges, advisers to the presidents of courts, court consultants, etc.) is usually given the opportunity to participate in the training of judges.

§ in area of courts’ performance in general (assessment of quality of court performance, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?

The Council has no powers to set the concrete targets for courts or impose any sanctions on courts or judges. However, being the executive institution of self-governance of the judiciary it can direct the activities of courts by setting standards in the form of recommendations. It can also control the administrative activities of courts by collecting the information on the length of court proceedings, reasons for delays, as well as by executing its right to make a motion for instituting a disciplinary action against a judge.

§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements)?

The Council of Judges approves the Regulations of Periodical Evaluation of the Activities of Judges, the Methodology of Calculation of the Workload of Judges. It also approves the Assessment Criteria for Candidates for Judicial Office and the Assessment Criteria for Persons Seeking Promotion in Judicial Office.

§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council as power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?

The Council of Judges has the right to make a motion for instituting a disciplinary action against a judge. A reasoned petition for bringing a disciplinary action against the judge must be submitted to the Judicial Ethics and Discipline Commission, which has the right to institute a disciplinary action. The instituted disciplinary action is then transferred to the Judicial Court of Honour. A decision of the Judicial Court of Honour may, within ten days after its adoption, be appealed against to the Supreme Court of general jurisdiction. The provisions of Article 6 of the ECHR are therefore respected.

The Council of Judges also:
1) appoints members of the Judicial Ethics and Discipline Commission;
2) appoints members of the Judicial Court of Honour;
3) approves the regulations of the Judicial Court of Honour.

§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?

In Lithuania budgets and investment programmes are drawn up by the appropriations managers - the courts. The courts submit their proposals for their draft budgets to the Council of Judges for consideration. The Council of Judges considers and approves proposals for draft investment programmes for courts and proposals for the budgets of district, regional and regional administrative courts and submits them to the Government. The Supreme Court, the Court of Appeal and the Supreme Administrative Court, after preparing their draft budgets, put them directly before the Government41.

Buildings and other property used by the courts and the National Courts Administration are owned by the state. The courts and the National Courts Administration manage, use and hold this property on trust. The property transferred to the courts and the National Courts Administration may not be taken without a prior consent of the Council of Judges42.

§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify.

In addition to the functions already mentioned, the Council of Judges:
1) approves the Regulations of Administration in Courts and resolves other issues of administration in courts;
3) approves model structures of district, regional and regional administrative courts, model lists of non-judicial positions and job descriptions;
4) co-operates with other institutions and organisations of Lithuania and other countries, as well as with the international organisations on the issues of self-governance of courts, administration and other issues relevant for the activities  of courts;
5) decides other issues relating to court activities.
The Council of Judges is not vested with official powers to participate in the law-drafting process, however, in practice most draft laws concerning the activities of the judiciary are submitted to the Council of Judges for consideration.
The Council of Judges, as the main self-governance institution of the judiciary, can report to the Government/Parliament about substantial problems in the court system.

23. Does the Council have investigation powers? If yes, please specify

No, it doesn’t.

24. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe.

Most information is collected and provided to the Council by the National Courts Administration. The National Courts Administration analyses the activities of courts, with the exception of administration of justice, makes proposals about the conditions of work in courts, gathers, analyses and gives a general overview of statistics of the courts and submits it to the Council of Judges. It also drafts a consolidated report about the implementation of the estimates of budgetary expenditure of the National Courts Administration, district courts, regional courts and regional administrative courts, gathers information about the enforcement of the decisions and resolutions of the General Meeting of Judges, the Council of Judges and the Judicial Court of Honour and submits it to the Council of Judges or, on its direction, to the General Meeting of Judges.43

Information to the Council of Judges may also be provided by the presidents of courts, judges, other institutions and officials, or requested by the Council itself. The Constitutional Court has ruled, that the legislator has a duty to establish such legal regulation that the special institution of judges would have powers to receive all the necessary information from state and municipal institutions (officials thereof) which would allow to elucidate and assess all the significant circumstances44.

The materials relating to the issues to be considered during the Council meetings are circulated to all the members of the Council at least three days before the meeting of the Council of Judges45.

According to the Law on Courts the Council of Judges can also form standing and ad hoc commissions.46 Usually for the solution of certain issues the Council of Judges forms various working groups, composed from judges and court personnel.

25. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary?
§ recommendations?
§ instructions to the courts?
§ decisions?

The laws do not provide for the list of norms that can be issued by the Council. Theoretically, any of the mentioned types of norms can be issued. In practice, the Council of Judges issues Decisions and Resolutions. Some of them are recommendatory (although in practice respected and implemented by the courts), and some are legally binding.

26. Are the functions or responsibilities of the Council described in law or other norms? Please specify.

In addition to the mentioned constitutional provision, providing for the advisory function of the Council in the procedure of appointment, promotion, transfer and dismissal of judges, the other functions and responsibilities of the Council are described by the Law on Courts.

27. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

The Law on Courts provides for rather concrete and specific list of the competences of the Council of Judges. However, this list is not exhaustive, providing that the Council “decides other issues relating to court activities”47.

28. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

Yes. The Code of Ethics for Judges was adopted by the General Meeting of Judges of the 28th of June 2006.
The Council is not given the expressively mentioned task to guarantee its observance (this function is mainly carried out by the presidents of courts), however, as it was mentioned above, the Council of Judges has the right to make a motion for instituting a disciplinary action against a judge. One of the grounds for the disciplinary liability of a judge in Lithuania is “an act demeaning the judicial office”, which is understood as “an act incompatible with the judge's honour and in conflict with the requirements of the Code of Ethics for Judges, discrediting the office of the judge and undermining the authority of the court”48

29. Does the Council handle external relationships of the courts:
§ has it a public relations department?
§ how does it ensure the transparency of its functioning and organisation?

As it was already mentioned, the Council of Judges does not have its own staff or structure. It is served by the National Court Administration. All the information about the meetings of the Council, its composition and the norms adopted are available at the website of the National Courts Administration.
The Council does not handle external relationships of the courts. However, the President of the Council presents the Annual Report on the activities of Lithuanian courts to the general publics.

30. Are decisions of the Council published and available to all?

Yes, they are. All the decisions of the Council are published at the website of the National Courts Administration.

Part VI – Assessment of the self-governance and the independence of the judiciary

31. To what extent is the work of the Council influenced by:
§ the executive power?
§ the legislative power?

According to the laws, the work of the Council may be influenced by neither the legislative, nor the executive power. Self-governance of courts is, in accordance with the Constitution of the Republic of Lithuania and other laws, the right and real power exercised by the judges and courts in deciding freely and independently, on their own responsibility, the issues pertaining to the activities of courts49.

The Council of Judges is an executive body of self-governance of courts ensuring independence of courts and judges.50 Thus it is not accountable to the legislative or executive powers. The institutions of self-governance of courts (including the Council of Judges) report periodically about their activities only to the highest body of self-governance of courts - the General Meeting of Judges.51

32. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?

Yes, it is.

33. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

As it was already mentioned, after the Ruling of the Constitutional Court of 21st of December 1999, the Ministry of Justice was deprived of almost all the functions regarding the judiciary.

34. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?

The system of self-governance of courts in Lithuania is made up of the General Meeting of Judges, the Judicial Council and the Judicial Court of Honour52. The functions of the Council of Judges as an executive body of self-governance of courts are thus difficult to compare to those carried of by the Supreme Court or the presidents of courts.

It must first of all be noted that the Supreme Court in Lithuanian legal system has no specific non-procedural powers vis-à-vis other courts or judges. Comparing to other courts, it has only a certain degree of independence with regard to the functions exercised by the Council.53 However, the other 2 highest courts – the Supreme Administrative Court and the Court of Appeal enjoy the same level of independence. The presidents of the mentioned courts, as it was already noted, are the members of the Council ex officio.

The president, the vice president of a court and the president of a division of a court are officers of court administration who shall, in accordance with the procedure prescribed by the law, direct the organisational work of the court54. The presidents of courts are responsible for the internal administration in the court, controlling the compliance with the requirements of the Code of Judicial Ethics, directing the organisational work of the court as well as for providing adequate working conditions for the judges and the court staff.

The internal administration of courts is carried out in accordance with the relevant resolutions of the Council of Judges. For example, the Council of Judges approves model structures of district, regional and regional administrative courts, model lists of positions and job descriptions. The president of every court approves the structure of the court, the list of non-judicial positions and categories, job descriptions of the court staff in accordance with those model structures.

The Council of Judges approves the Regulations of Administration in Courts, which must be followed by the presidents of courts. It also considers and approves proposals for draft investment programmes for courts and proposals for the budgets of district, regional and regional administrative courts (prepared by the relevant courts) and submits them to the Government.

35. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?

The highest courts (the Supreme Court, the Supreme Administrative Court and the Court of Appeal) are subject to the exercise of the powers of the Council, with some exceptions related to specific status and functions of those courts. Summing them up it can be said that the highest courts enjoy a certain level of organisational independence. For example, the highest courts determine their structures, lists of non-judicial positions and their job descriptions themselves. They also submit their budgets directly to the Government, without the prior approval by the Council of Judges55.

36. Who decides which the priorities of actions of the Council are?

The General Meeting of Judges or the Council itself.

37. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

No, it isn’t.

38. Which instruments or practices are used by the Council:
§ to guard the independence of judges?
§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
§ to intervene in case of attacks against its own interests56?
§ to improve the working methods of judges?

The Council of Judges is not very active in reacting to the attacks on judges coming from the general public, the media and other powers of the State. Traditionally more active in this sphere is Lithuanian Association of Judges. However, there were several cases when the Council of Judges reacted to the inaccurate information provided by the mass media57 or improper requests of the other state institutions58 by the form of official declarations or press releases.

On the contrary, the improvement of the working methods of judges and courts in general constitutes a major part of the activities of a Council. It is mostly done by adopting the relevant Resolutions and Recommendations and supervising their implementation. For example, the Council of Judges has approved the Regulations of the Periodical Evaluation of the Activities of Judges,59 Recommendations on the Behaviour of Judges during the Oral Sessions,60 and others. The Council of Judges analyses the length of court proceedings and reasons for delays. It can also charge the president of court to examine the administrative activities of a particular judge.
For the analysis of particular issues the working groups of the Council are composed, who analyse the question and provide the conclusions and recommendations which can be afterwards approved by the Council.

Part VII – Future trends of Councils for the Judiciary

39. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.

No, there are not.

40. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.

The new wording of the Law on Courts is presently under consideration of Seimas. It is not specifically intended to reform the Council of Judges; however, some amendments as regards the composition of the Council are proposed. It is proposed that the Council will be composed of 21 judges – presidents of the Supreme Court, Supreme Administrative Court and the Court of Appeal ex officio, 3 judges proposed by the President of the State and 15 judges elected by the General Meeting of judges on the principle of representation of courts: 1 from the Supreme Court, 1 from the Supreme Administrative Court, 1 from the Court of Appeal, 5 from regional courts, 2 from regional administrative courts and 5 from district courts.
Those reforms, however, are not substantial and will not affect the competence of the Council.

41. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?

There are no formal relations. From 1998 to 2006 the most numerous judges' professional organisation was granted a right to elect one member of the Council. After the last amendments of the Law on Courts this right was abolished.
However, in practice the actions of the Council and Lithuanian Association of Judges (it is presently only one professional organization of judges in Lithuania) are quite often coordinated. Many members of the Council of Judges are also members of the Lithuanian Association of Judges.

42. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
§ concerning the national actions of your Council?
§ concerning international co-operation?

Lithuania is a member of the European Network of Councils for the Judiciary. Members of the Council of Judges of Lithuania participate in the working groups of the European Network of Councils for the Judiciary, such as “Mission and vision, rules and other relevant matters of the Councils”,61 „Liability of Judges“.62 Representatives of the Council and National Courts Administration also participated in the sitting of the working group, which analyzed the systems of evaluation of judicial activities in the European States63. Knowledge gained from the participation in the working groups of the European Network of Councils for the Judiciary is used by the working groups of the Council.

43. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.

The most important features of the Lithuanian Council of Judges were already described. From a comparative point of view it might be interesting to stress the democratic formation of the Council of Judges (members of the Council are elected by the General Meeting of Judges, on the principle of representation of various courts, the President of the Council is elected by the members of the Council), its exclusively judicial composition and independence from the legislative and executive powers.

Part VIII – Countries without a Council of the Judiciary

44. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

45. How and by whom are judges appointed and promoted?

46. Does any authority (body) independent64 of the government and the administration take part in the appointment and promotion process:

§ If yes, how is this authority composed? Is a certain share of judges fixed?
§ How are the members selected?
§ what are the detailed competences of the authority with respect to the appointment and promotion of judges?

47. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

48. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?

1 Article 5 of the Constitution of the Republic of Lithuania (further - the Constitution)
2 Ruling of the Constitutional Court of 21 December 1999
3 Article 74 of the Constitution
4 Article 114 of the Constitution
5 Ruling of the Constitutional Court of 4 April 2006

6 Ibidem

7 Ruling of the Constitutional Court of 13 May 2004

8 The Resolution of the Seimas “Concerning the Outline of Reform of Legal System and Its Implementation” adopted on 14 December 1994.
9 It has to be noted that at that time the court system of Lithuania consisted of district courts, regional courts, Court of Appeal and the Supreme Court. The system of administrative courts, which is composed of regional administrative courts and the Supreme Administrative Court, started to function in Lithuania only from 1999.
10 Ruling of the Constitutional Court of 21 December 1999
11 Ibidem
12 Ruling of the Constitutional Court of 21 December 1999
13 Ibidem
14 At the moment, the draft of the new wording of the Law on Courts is under consideration of the Seimas.
15 The name of the former Council of Judges was changed to the “Judicial Council” by the mentioned law. This name was used until May 2006, when it was re-changed to the “Council of Judges” again.
16 Article 93 of the Law on Courts
17 Article 128 of the Law on Courts
18 Article 112 of the Constitution.
19 Ruling of the Constitutional Court of 21 December 1999
20 Article 107 of the Law on Courts
21 Article 103 of the Law on Courts
22 Ruling of the Council of Judges of 11 June 2004 “On the approval of the Rules of Distribution of Cases in Distric, Regional, Regional Administrative Courts and the Court of Appeal of Lithuania”
23 Article 103 of the Law on Courts
24 Article 104 of the Law on Courts
25 Article 84 of the Law on Courts
26 Regulations of the Periodical Evaluation of the Activities of Judges, approved by the Judicial Council on the 7th of May 2004.
27 Article 119 of the Law on Courts
28 Adopted by referendum on the 25th of October 1992
29 See the answer to the question 3 for more details
30 The name of the Council of Judges was changed to the “Judicial Council” due to the fact, that the new Council was not composed exclusively of judges
31 Ruling of the Constitutional Court of 9 May 2006

32 Ibidem

33 Law on Amendment of the Law on Courts of 23rd of May 2006, No. X-611
34 The former name of the institution “the Council of Judges” was re-established by the mentioned amendment
35 See the answer to the question 10 for more details
36 Article 119 of the Law on Courts
37 Article 84 of the Law on Courts
38 Ruling of the Constitutional Court of 9 May 2006
39 The Selection Commission is composed of seven persons and is formed for a period of three years. It selects the candidates for judicial office for the President of the State. The conclusions of the Selection Commission about the candidates to judicial office are not binding on the President of the State, but respected in practice
40 Article 93 of the Law on Courts
41 Article 127 of the Law on Courts
42 Article 128 of the Law on Courts
43 Article 125 of the Law on Courts
44 Ruling of the Constitutional Court of 9 May 2006
45 Article 121 of the Law on Courts
46 Article 120 of the Law on Courts
47 Article 120 of the Law on Courts
48 Article 83 of the Law on Courts
49 Article 113 of the Law on Courts
50 Article 119 of the Law on Courts
51 Article 10 of the Law on Courts
52 Article 114 of the Law on Courts
53 See the answer to the question 35
54 Article 103 of the Law on Courts
55 Articles 127, 120 of the Law on Courts
56 Please consider the following statements contained in the CCJE’s Opinion No. 7:

- para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “

57 E.g. press-release of 28 September 2005 „Teismų darbas žiniasklaidoje nevisuomet vertinamas objektyviai“ („Judicial activities are not always assessed objectivelly by the mass media“).

58 E.g. Written Statement of the Council of Judges concerning the request of the Human Rights Commitee of Seimas, 23 June 2005
59 Resolution of the Council of Judges of 7 May 2004
60 Resolution of the Council of Judges of 11 June 2004
61 Resolution of the Council of Judges of 10 July 2006
62 Resolution of the Council of Judges of 10 July 2006
63 Annual Report of the National Courts Administration of 2005.

64 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).



 Top

 

  Related Documents
 
   Other documents